EHRM, 07-11-2013, nr. 29381/09, nr. 32684/09

The Government argued firstly that the complaint was inadmissible ratione personae. With regard to the association Synthessi — Information, Awareness-raising and Research, they contended in particular that, as a legal entity, it could not be considered as a direct or indirect victim of the alleged violations. Moreover, the individual applicants could not be considered as victims of the alleged violation from the standpoint of Articles 14 and 8, as they did not suffer direct and immediate adverse consequences as a result of their inability to enter into a civil union. By way of example, the Government observed that the payment of maintenance following the dissolution of a civil union was optional under section 6 of Law no. 3719/2008. Furthermore, the applicants were in any case free to enter into a contract within each couple laying down obligations and reciprocal rights in that regard. As to partners' inheritance rights, the Government conceded that section 11 of the Law at issue provided for the surviving partner in a civil union to inherit on intestacy. However, the applicants, in view of their age (the oldest of them was still under sixty), could be regarded only as hypothetical victims of the alleged violation. In any case, they could at any time regulate inheritance issues or general issues concerning each partner's property status (including their financial relations) by means of a will or contract.

The Government further submitted that the applicants had not exhausted the domestic remedies available to them in the instant case. In general terms, they argued that the alleged impossibility for the applicants to challenge the impugned legislation in the domestic courts was not due to the absence of an effective remedy in Greek law but rather to the fact that they had suffered no immediate and direct prejudice as a result of their exclusion from the legislation on civil unions. In sum, those applicants who were private individuals did not have victim status because the harm they claimed to have suffered with regard to the right to potential maintenance payments, inheritance arrangements and the regulation of financial issues within each couple was hypothetical and based on speculation.

The Government further contended that an action for damages in the administrative courts under section 105 of the Introductory Law to the Civil Code would have constituted an effective remedy in the instant case. Under that provision, the State was obliged to provide redress for damage caused by the acts or omissions of its organs in the exercise of public authority. The sole condition was that the act or omission had to be unlawful, that is to say, it had to infringe a rule of law establishing a specific individual right or interest. In the present case the applicants could have complained before the domestic courts under Articles 57, 914 and 932 of the Civil Code, read together with section 105 of the Introductory Law, of a breach of their personality rights and of their social marginalisation on account of their exclusion as same-sex couples from the scope of Law no. 3719/2008. In the Government's view, this remedy would have enabled the applicants to claim compensation for any damage caused by the impugned legislation and at the same time to challenge its constitutionality. They observed that, according to the case-law of the domestic courts, the latter could interpret the constitutional principle of equality broadly, extending a legislative provision favourable to a specific category of persons to cover another category in a similar situation. As authority, the Government cited two judgments of the Court of Cassation (nos. 60/2002 and 9/2004) concerning the salaries and allowances of different categories of employees, an issue that the court had examined from the standpoint of the equality principle.

The Government added that a review of constitutionality in Greece was diffuse and incidental and that all the domestic courts were empowered, in the context of the specific applications lodged before them, to examine issues of constitutionality and conformity with the Convention. They pointed out that, under Article 28 of the Constitution, the provisions of international treaties took precedence over domestic-law provisions once they had been ratified by the legislature, and that Legislative Decree no. 53/1974 had ratified the Convention in domestic law. They cited, among other authorities, certain judgments by the Supreme Administrative Court, the Court of Cassation and the Court of Audit in which those courts had conducted an incidental review of the conformity of various legislative provisions with the Greek Constitution and/or Articles 7, 11 and 12 of the Convention and Article 1 of Protocol No. 1. In this regard, the Government referred in particular to Supreme Administrative Court judgments nos. 867/1988, 33/2002, 2960/2010, 1664/2011 and 1501/2012, Court of Cassation judgment no. 982/2010 and Court of Audit judgment no. 2028/2004. They also contended that the legislation in question could be amended if found by a judicial decision to be unconstitutional. The Government cited as an example the abolition, under Law no. 1848/1989, of Article 65 of Legislative Decree no. 1400/1973 in the wake of Supreme Administrative Court judgment no. 867/1988 concerning the formal conditions governing the exercise by Greek army officers of the right to marry.

On the basis of all these considerations the Government concluded that the applicants could have relied on Articles 14 and 8 of the Convention before the domestic courts in the context of an action for compensation based on section 105 of the Introductory Law to the Civil Code, and submitted on that occasion their complaint as to the discriminatory nature of the legislation at issue.

The applicants observed at the outset that they could in theory approach a notary to request that he or she draw up a civil union contract in accordance with the impugned Law. However, if the notary, against all expectations, were to agree to their request, he or she would be liable to disciplinary action for a breach of official duty. Accordingly, it was extremely unlikely that any notary would dare break the law in order to accede to the applicants' request. Furthermore, the applicants pointed out that notaries in Greece were members of a liberal profession. Consequently, any legal action before the administrative courts would have no prospect of success since notaries were not agents of the State. As to an action in the civil courts, that would have no greater chance of success, as a notary who refused to draw up a notarised instrument in respect of a same-sex couple would not incur any liability in tort as a result. Such a refusal would be neither unlawful nor intentional, as required by the domestic legislation in order for an individual to incur liability in tort.

Regarding the very specific issue of an action for damages based on section 105 of the Introductory Law to the Civil Code, the applicants disputed the Government's assertion that this was an effective remedy. Firstly, they asserted in general terms that the present cases affected their civil status and their position in Greek society. For that reason, any compensation that might be awarded by the domestic courts would in no way alleviate their feeling of exclusion and social marginalisation caused by Law no. 3719/2008. The applicants contended that only a finding by the Court of a violation of Articles 8 and 14 of the Convention would be capable of redressing the damage they had suffered in the instant case.

The applicants further maintained that the domestic courts were traditionally very reluctant to find that a claim for compensation could arise out of a legislative act or a failure to legislate in a given sphere. They submitted, firstly, that the case-law of the domestic courts cited by the Government by no means accepted that the State was civilly liable whenever a law was held to be contrary to a higher-ranking legal rule. Whether in the context of the Constitution or an international convention, the administrative courts were still very hesitant about establishing a general principle limiting the legislature's margin of appreciation. Secondly, the applicants contended that the case-law cited by the Government was not relevant since it bore no relation to the present case. This was particularly so since the case-law of the domestic courts was much more restrictive than that of the Court with regard to the notion of ‘family’. The applicants cited Court of Cassation judgment no. 1141/2007, which had explicitly excluded the deceased's partner from his ‘family’.

Lastly, the applicants observed that, on account of the diffuse and incidental nature of a review of constitutionality, no procedural rules existed in domestic law providing for the amendment of a legislative provision deemed to be unconstitutional and thereby enabling notaries to draw up civil union contracts for same-sex couples as well. In other words, even in the hypothetical case that an action for damages under section 105 of the Introductory Law to the Civil Code were to succeed in the domestic courts, the administrative authorities would be under no obligation to amend the impugned legislation.

The third-party interveners did not comment on the admissibility of the complaint.

The Court reiterates that, in order to rely on Article 34 of the Convention, an applicant must meet two conditions: he or she must fall into one of the categories of petitioners mentioned in Article 34 and must be able to make out a case that he or she is the victim of a violation of the Convention. According to the Court's established case-law, the concept of ‘victim’ must be interpreted autonomously and irrespective of domestic concepts such as those concerning an interest or capacity to act (see Gorraiz Lizarraga and Others v. Spain, no. 62543/00, § 35, ECHR 2004-III). The word ‘victim’, in the context of Article 34 of the Convention, denotes the person or persons directly or indirectly affected by the alleged violation (see SARL du Parc d'Activités de Blotzheim v. France, no. 72377/01, § 20, 11 July 2006). Hence, Article 34 concerns not just the direct victim or victims of the alleged violation, but also any indirect victims to whom the violation would cause harm or who would have a valid and personal interest in seeing it brought to an end (see, mutatis mutandis, Defalque v. Belgium, no. 37330/02, § 46, 20 April 2006, and Tourkiki Enosi Xanthis and Others v. Greece, no. 26698/05, § 38, 27 March 2008).

As regards the association Synthessi — Information, Awareness-raising and Research, the Court observes that it is a not-for-profit association, the chief aim of which is to provide psychological and moral support to gays and lesbians. However, the complaints raised by the present case relate to the fact that section 1 of Law no. 3719/2008 does not afford individuals of the same sex the possibility of entering into a civil union. Consequently, in so far as the seventh applicant in application no. 32648/09 is a legal entity, it cannot be considered in the instant case as a direct or indirect ‘victim’ within the meaning of Article 34 of the Convention (see, mutatis mutandis, Fédération chrétienne des témoins de Jéhovah de France v. France (dec.), no. 53430/99, ECHR 2001-XI).

As to the other applicants, the Court notes that they are individuals of full age, who, according to the information submitted to it, are in same-sex relationships and in some cases cohabit. To the extent that, as a result of section 1 of Law no. 3719/2008 which excludes same-sex couples from the scope of the Law, they cannot enter into a civil union and organise their relationship according to the legal arrangements laid down by that Law, the Court considers that they are directly concerned by the situation and have a legitimate personal interest in seeing it brought to an end. Accordingly, it concludes that the individuals in the present applications should be considered as ‘victims’ of the alleged violation within the meaning of Article 34 of the Convention.

In view of the foregoing, the Court considers that the seventh applicant in application no. 32684/09 does not have the status of victim within the meaning of Article 34 of the Convention and that this complaint, in so far as it was raised by it, must be rejected in accordance with Article 35 § 4. The Court dismisses the Government's objection alleging that the remaining applicants lack victim status.

The Court reiterates that the rule concerning the exhaustion of domestic remedies set forth in Article 35 § 1 of the Convention is based on the assumption, reflected in Article 13 (with which it has a close affinity), that there is an effective domestic remedy available, in practice and in law, in respect of the alleged violation (see Kudła v. Poland [GC], no. 30210/96, § 152, ECHR 2000-XI, and Hasan and Chaush v. Bulgaria [GC], no. 30985/96, §§ 96–98, ECHR 2000-XI). It observes that the rule of exhaustion of domestic remedies requires applicants — using the legal remedies available in domestic law in so far as they are effective and adequate — to afford the Contracting States the possibility of putting right the violations alleged against them before bringing the matter before the Court (see, among other authorities, Fressoz and Roire v. France [GC], no. 29183/95, § 37, ECHR 1999-1).

The only remedies which Article 35 § 1 of the Convention requires to be exhausted are those that relate to the breaches alleged and at the same time are available and sufficient. The existence of such remedies must be sufficiently certain not only in theory but also in practice, failing which they will lack the requisite accessibility and effectiveness; it falls to the respondent State to establish that these conditions are satisfied (see, among other authorities, McFarlane v. Ireland [GC], no. 31333/06, § 107, 10 September 2010). The existence of mere doubts as to the prospects of success of a particular remedy which is not obviously futile is not a valid reason for failing to exhaust domestic remedies (see Akdivar and Others v. Turkey, 16 September 1996, § 71, Reports of Judgments and Decisions 1996-IV). Lastly, an applicant who has availed himself of a remedy capable of redressing the situation giving rise to the alleged violation, directly and not merely indirectly, is not bound to have recourse to other remedies which would have been available to him but the effectiveness of which is questionable (see Manoussakis and Others v. Greece, 26 September 1996, § 33, Reports 1996-IV, and Anakomba Yula v. Belgium, no. 45413/07, § 22, 10 March 2009).

In the instant case the Court notes that the Government's chief argument regarding the exhaustion of domestic remedies consisted in maintaining that, by bringing an action for compensation under section 105 of the Introductory Law to the Civil Code, the applicants could have challenged the constitutionality of Law no. 3719/2008 on the basis of an interlocutory application. They contended that the applicants could thus have submitted to the domestic courts the issue of the compatibility of the legislation in question with Articles 8 and 14 of the Convention.

Firstly, the Court observes that the remedy referred to by the Government merely provides for the person concerned to obtain redress in respect of an act or omission by the State in the exercise of public authority. Accordingly, any review of the constitutionality of a law is carried out by the competent court as an incidental issue, with a view to determining whether the State must afford redress to the individual for an infringement of a rule of law establishing a specific individual right or interest. In the instant case, however, the applicants complain of a continuing violation of Articles 14 and 8 of the Convention on account of their inability, as same-sex couples, to enter into civil unions, whereas legislation exists affording that possibility to different-sex couples. Hence, a mere award of financial compensation would not appear capable of remedying their grievances.

Secondly, with regard to the nature of the remedy invoked by the Government, the Court notes that, even if a claim for damages based on section 105 of the Introductory Law to the Civil Code were to be allowed by the domestic courts, the State would be under no statutory obligation to amend the legislation in question.

Lastly, the Court observes additionally that, as shown by the judgments cited by the Government in the context of an action for compensation based on section 105 of the Introductory Law to the Civil Code, the domestic courts apply section 105 of the Introductory Law restrictively as regards the State's liability in tort in cases where a law is found to be unconstitutional. In particular, the Court notes that none of the judgments of the highest courts in Greece cited by the Government concerned an issue comparable to that raised in the instant case, that is to say, the unconstitutionality of a statute on account of its discriminatory nature with regard to the right to private or family life. This is particularly true since none of the judgments in question examined the issue of compensation for the claimants on account of the incompatibility of a law with Articles 8 and 14 of the Convention.

In sum, the Court considers that the Government have not produced any examples of past court rulings capable of demonstrating convincingly that the lodging by the applicants of the action provided for by section 105 of the Introductory Law to the Civil Code could have remedied their complaints under Articles 8 and 14 of the Convention. A State pleading non-exhaustion of domestic remedies must, however, demonstrate the existence of effective and sufficient domestic remedies (see Soto Sanchez v. Spain, no. 66990/01, § 34, 25 November 2003; L. v. Lithuania, no. 27527/03, §§ 35–36, ECHR 2007-IV; and Sampanis and Others v. Greece, no. 32526/05, § 58, 5 June 2008).

In view of the foregoing the Court considers that, regard being had to the nature of the action for compensation based on section 105 of the Introductory Law to the Civil Code and its application by the courts, it cannot be said to constitute a remedy to be exhausted under Article 35 § 1 of the Convention. Accordingly, the Court dismisses the Government's objection of non-exhaustion of domestic remedies.

The Court considers that this complaint must be rejected in accordance with Article 35 § 4 of the Convention in respect of the seventh applicant in application no. 32684/09, as the applicant does not have the status of a ‘victim’ within the meaning of Article 34 of the Convention. Furthermore, the Government's objection of non-exhaustion of domestic remedies is dismissed. Lastly, the Court notes that, as regards the eight applicants who have the status of ‘victims’ for the purposes of Article 34 of the Convention, this complaint is not inadmissible on any other grounds; it therefore declares it admissible.

The applicants referred to the judgment in Schalk and Kopf v. Austria (no. 30141/04, ECHR 2010), in which the Court had acknowledged that the relationship of a cohabiting same-sex couple living in a stable de facto partnership fell within the notion of ‘family life’. They contended that, although European countries' legislation on the issue was not entirely uniform, there was nevertheless a trend towards legal recognition of same-sex couples. The applicants observed that, to their knowledge, Greece was to date the only European country to have introduced a legal alternative to marriage that was confined to different-sex couples. In other words, Greece was the only country to have enacted legislation governing a form of civil partnership while under the same legislation excluding same-sex couples from its scope. Greece was thus clearly and radically out of step with the norm among European countries in that regard. The applicants argued that the wish to preserve the ties of the traditional heterosexual family could not constitute substantive grounds such as to justify treating same-sex couples differently. Instead of taking positive steps to overcome prejudice against gays and lesbians in Greek society, the respondent State had reinforced that prejudice by enacting Law no. 3719/2008 without including same-sex couples. In the applicants' view, the Law in question cast a negative moral judgment on homosexuality as it reflected an unjustifiable reserve, not to say hostility, towards same-sex couples. Having decided to move away from marriage as the sole formal basis of family life, the legislature had shown a clear disregard for same-sex couples by excluding them from the scope of Law no. 3719/2008.

Lastly, the applicants could not subscribe to the Government's argument that the legislature's aim had been to protect children born to different-sex couples living in de facto partnerships. In the applicants' view, it was clear that the legislation in question was designed to regulate the situation of couples who did not wish to marry, irrespective of whether or not they had or wished to have children. Hence, they considered that their exclusion from the scope of the legislation lacked any objective and reasonable justification and was therefore discriminatory.

The Government observed that, with regard to the legitimate aims pursued by Law no. 3719/2008, the legislation on civil unions should be viewed as a set of provisions allowing parents to raise their biological children in such a way that the father had an equitable share of parental responsibility without the couple being obliged to marry. Civil unions therefore meant that, when the woman became pregnant, the couple no longer had to marry out of fear that they would not otherwise have the legal relationship they desired with their child since he or she would be regarded as being born out of wedlock. Hence, by introducing civil unions the Greek legislature had shown itself to be both traditional and modern in its thinking. By enacting Law no. 3719/2008, the legislature had sought to strengthen the institutions of marriage and the family in the traditional sense, since the decision to marry would henceforth be taken irrespective of the prospect of having a child and thus purely on the basis of a mutual commitment entered into by two individuals of different sex, free of outside constraints.

The Government further submitted that Law no. 3719/2008 was aimed at regulating an existing social phenomenon, that of unmarried different-sex couples who had children. Greek law differed in that respect from the legislation in other European countries providing for civil unions. The Greek legislature had stated expressly in the explanatory report on the Law that it was not seeking to regulate all forms of de facto partnership but rather to protect children born to different-sex couples in such partnerships, as well as the parents themselves if they did not wish to marry. In the Government's view, the whole structure of the Law and the content of its provisions were designed to reflect this. Consequently, the introduction of civil unions for same-sex couples would require a separate set of rules governing a situation which was analogous to, but not the same as, the situation of different-sex couples.

The Government stated that, prior to the enactment of Law no. 3719/2008, domestic law had afforded limited recognition to different-sex couples living together outside marriage. In particular, Article 1444 of the Civil Code made reference to ‘de facto partnership[s]’. Under that provision, divorced persons who remarried or lived in a de facto partnership lost the right to maintenance payments. De facto partnerships were also mentioned in Articles 1456 and 1457 of the Civil Code concerning assisted reproduction. Article 1456 provided that, if an unmarried woman sought recourse to assisted reproduction techniques, the man with whom she lived in a de facto partnership had to give his consent before a notary. Article 1457 laid down the conditions in which ‘artificial insemination [was permitted] following the death of the woman's husband or the man with whom she live[d] in a de facto partnership’.

The Government were of the view that, in examining the conformity of section 1 of Law no. 3719/2008 with Articles 8 and 14 of the Convention and, in particular, in assessing the proportionality of the interference in question, the Court should take into consideration the overall background to the case and all the provisions of the above-mentioned Law concerning civil unions. First of all, the Government urged the Court to make a distinction between the applicants who cohabited and those who did not. In the case of the former, their complaints should be examined from the standpoint of the right to ‘family life’; in the case of the latter, the applicable concept was that of ‘private life’.

The Government then proceeded to analyse the rights and obligations arising out of civil unions and concluded that the applicants' property and personal status had in no way been affected by their exclusion from the scope of the legislation on civil unions. With regard to property issues, the Government reiterated their arguments concerning the admissibility ratione personae of the complaint. They observed that civil unions did not produce any automatic and binding effects with regard to the partners' property status. As to social-security matters, same-sex couples were in an identical position to different-sex couples who decided to enter into a union. As far as maintenance and inheritance issues were concerned, these could be regulated within a same-sex couple without a civil union, by means of a contractual agreement.

With regard to the applicants' personal situation, the Government maintained that the biological difference between different-sex and same-sex couples, in so far as the latter could not have biological children together, justified limiting civil unions to different-sex couples. The Government referred in particular to sections 9 and 10 of Law no. 3719/2008, which enabled the father of a child born outside marriage to establish paternity and be involved in the child's upbringing without having to be married to the child's mother. Hence, marriage and the recognition of paternity by the courts or by the father himself no longer constituted the sole means of establishing paternity. The Government stressed that the object of the provisions in question represented the ‘hard core’ of the legislation on civil unions and, by definition, could apply only to different-sex couples. On the basis of that argument, the Government contended that the present case should not lead the Court to find a violation of Articles 14 and 8 of the Convention. In their view, same-sex couples were not in a similar or comparable situation to different-sex couples since they could not in any circumstances have biological children together.

The Government added that, as stated in Law no. 3719/2008, the legislation on civil unions differed from similar legislation enacted by other Council of Europe member States. While those laws produced effects with regard to the financial relations between the parties, only the Greek legislation established a presumption of paternity in respect of children born in the context of a civil union. The Government concluded from this that Law no. 3719/2008 focused on the personal ties between the partners rather than the property-related aspects of their relationship.

The third-party interveners (the AIRE Centre, the ICJ, the FIDH and ILGA-Europe — see paragraph 6 above) referred to the Court's case-law, and in particular its judgment in Karner v. Austria (no. 40016/98, ECHR 2003-IX) and to the case-law of national constitutional courts including the Hungarian Constitutional Court, the Supreme Court of Canada, the United Kingdom's House of Lords and the Brazilian Constitutional Court. According to those courts, a strong justification was required when the ground for a distinction was sex or sexual orientation. The third-party interveners observed that a growing number of national courts, both in Europe and elsewhere, required that unmarried different-sex and same-sex couples be treated in the same way. A large number of Council of Europe member States had now enacted legislation recognising same-sex relationships. To their knowledge, the case of Greece was unique, as it was the only European country to have introduced civil unions while excluding same-sex couples from their scope of application. The relevant legislation of the Contracting States on registered civil partnerships for same-sex couples was founded on two models: (a) the ‘Danish model’, based on the Danish legislation introduced in 1989, which confined the registration scheme to same-sex couples, since different-sex couples already had the option of marrying, and (b) the ‘French model’, whereby the right to enter into a civil partnership was open to all unmarried couples irrespective of their sexual orientation.

The Court has already dealt with a number of cases in which the applicants alleged discrimination on grounds of sexual orientation in the sphere of private and family life. Some were examined under Article 8 taken alone. These cases concerned the prohibition under criminal law of homosexual relations between adults (see Dudgeon v. the United Kingdom, 22 October 1981, Series A no. 45; Norris v. Ireland, 26 October 1988, Series A no. 142; and Modinos v. Cyprus, 22 April 1993, Series A no. 259) and the discharge of homosexuals from the armed forces (see Smith and Grady v. the United Kingdom, nos. 33985/96 and 33986/96, ECHR 1999-VI). Others were examined under Article 14 taken in conjunction with Article 8. These concerned differing ages of consent under criminal law for homosexual relations on the one hand and heterosexual relations on the other (see L. and V. v. Austria, nos. 39392/98 and 39829/98, ECHR 2003-I), the granting of parental responsibility (see Salgueiro da Silva Mouta v. Portugal, no. 33290/96, ECHR 1999-IX), authorisation to adopt a child (see Fretté v. France, no. 36515/97, ECHR 2002-I; E.B. v. France [GC], no. 43546/02, 22 January 2008; and Gas and Dubois v. France, no. 25951/07, ECHR 2012), the right to succeed to the deceased partner's tenancy (see Karner, cited above, and Kozak v. Poland, no. 13102/02, 2 March 2010), the right to social-security cover (see P.B. and J.S. v. Austria, no. 18984/02, 22 July 2010), access for same-sex couples to marriage or another form of legal recognition (see Schalk and Kopf, cited above) and the exclusion of same-sex couples from second-parent adoption (see X and Others v. Austria [GC], no. 19010/07, 19 February 2013).

In the instant case the applicants formulated their complaint under Article 14 taken in conjunction with Article 8, and the Government did not dispute the applicability of those provisions. The Court finds it appropriate to follow this approach (see, to the same effect, Schalk and Kopf, cited above, § 88).

Furthermore, the Court has repeatedly held that Article 14 is not autonomous but has effect only in relation to other Convention rights. This provision complements the other substantive provisions of the Convention and the Protocols. It has no independent existence since it has effect solely in relation to ‘the enjoyment of the rights and freedoms’ safeguarded by those provisions. Although the application of Article 14 does not presuppose a breach of those provisions — and to this extent it is autonomous — there can be no room for its application unless the facts at issue fall within the ambit of one or more of the latter (see, among other authorities, Petrovic v. Austria, 27 March 1998, § 22, Reports 1998-II; E.B., cited above, § 47; Schalk and Kopf, cited above, § 89; and X and Others, cited above, § 94).

The Court notes, on the basis of the case file, that the applicants form stable same-sex couples. Furthermore, it is not disputed that their relationships fall within the notion of ‘private life’ within the meaning of Article 8 of the Convention. The Court also points out that in its judgment in Schalk and Kopf, it considered that, in view of the rapid evolution in a considerable number of member States regarding the granting of legal recognition to same-sex couples, ‘it [would be] artificial to maintain the view that, in contrast to a different-sex couple, a same-sex couple [could not] enjoy ‘family life’ for the purposes of Article 8’ (see Schalk and Kopf, cited above, § 94). Accordingly, the Court is of the view that the applicants' relationships in the present case fall within the notion of ‘private life’ and that of ‘family life’, just as would the relationships of different-sex couples in the same situation. It can see no basis for drawing the distinction requested by the Government (see paragraph 65 in fine) between those applicants who live together and those who — for professional and social reasons — do not (see paragraph 8 above), since in the instant case the fact of not cohabiting does not deprive the couples concerned of the stability which brings them within the scope of family life within the meaning of Article 8.

In sum, the Court concludes that Article 14 of the Convention taken in conjunction with Article 8 is applicable in the present case.